WILLNERD v. SYBASE, INC.

Filing 78

ORDER ON DISCOVERY ISSUES. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

Willnerd v. Sybase, Inc.

Doc. 78

UNITED STATES DISTRICT COURT F O R THE DISTRICT OF IDAHO

M A R K WILLNERD, an individual, C a s e No. 1:09-cv-500-BLW Plaintiff, O R D E R ON DISCOVERY ISSUES v. S Y B A S E , INC., a Delaware corporation, Defendant.

B e f o re the Court are a number of discovery disputes between the parties in this m a tte r (See Statements, Dkts. 66, 68, 70). The Court conducted informal discovery c o n f e re n c e s on October 11, 14, and 15, 2010, in attempts to resolve the disputes. The p a rtie s reached tentative agreement on a number of issues, to be memorialized in a s tip u la tio n that will be filed by the parties. With respect to the three unresolved issues, th e Court requested, and the parties agreed to simultaneously submit, 10 page position s ta te m e n ts. Two additional issues were raised in Willnerd's statement, for which the C o u rt requested, and Sybase provided, a supplemental response. Having reviewed the re c o rd and the parties' discovery statements, the Court now issues the following order. D IS C U SS IO N T h e five issues now briefed and before the Court are as follows: (1) the scope of W illn e rd 's 30(b)(6) designations; (2) documents to be produced relative to Willnerd's

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30(b)(6) deposition; (3) production of 360 reviews of Sybase employees; (4) Willnerd's re s p o n s e s to questions concerning personal expenses made on his Sybase credit card; and (5 ) documents to be produced regarding compensation paid to Sybase employees by SAP, a company that recently merged with Sybase. 1. S c o p e of 30(b)(6) Designation Topics A. G e n e r a l Immigration Policies, and Sybase Employees Disciplined For F a ilu r e to Comply

S yb a s e indicated its designee will be able to testify about all of Sybase's im m ig ra tio n policies. The designee will also be able to identify Sybase employees d is c ip lin e d in the last 5 years for failure to comply with Sybase's immigration policies a n d U.S. immigration law. Willnerd requests no time limitation on this topic, and asks th a t it include any disciplinary measures taken against those employees for their failure to c o m p ly with Sybase immigration policies and U.S. immigration law. The Court is persuaded that the time limitation proposed by Sybase is appropriate. The probative value of records more than 5 years old on this subject is outweighed by the tim e and expense required for Sybase to produce the records. The Court will require S yb a s e to prepare its designee concerning Sybase's immigration policies, and the id e n titie s of employees disciplined in the last 5 years for failure to comply with Sybase's im m ig ra tio n policies or U.S. immigration law, as well as the disciplinary measures taken a g a in s t those employees, if any. B. A c c o u n ta b ility Practices of Sybase Managers

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Sybase indicated it will designate a witness to testify regarding Sybase's policies a n d practices from 2007 to present ­ as applied by or to managers whose rank is above W illn e rd 's , similarly situated to Willnerd, and one rank below ­ for ensuring that Sybase f o llo w s its immigration policies and U.S. immigration law concerning foreign nationals in th e U.S. on Sybase-related business. Willnerd asks that this topic cover those managers tw o ranks below Willnerd, and include practices with respect to foreign nationals entering th e U.S. on non-immigrant visas for temporary employment. T h e Court adopts the wording proposed by Sybase, but with the somewhat broader s c o p e identified by Willnerd. The Sybase designee shall be prepared to testify concerning p o lic ie s and practices from 2007 to present, for ensuring that Sybase's immigration p o lic ie s and U.S. immigration laws are followed with respect to foreign nationals in the U .S . ­ including those entering on non-immigrant visas for temporary employment ­ for S yb a s e -re la te d business. The designee shall be prepared to testify concerning the policies a n d practices as applied by or to managers similarly situated to, above, and one rank b e lo w Willnerd. C. G o v e r n m e n t Feedback to Sybase Re Immigration Law

Willnerd asks that the designee address any communication between the U.S. G o v e rn m e n t and Sybase concerning compliance with immigration law. Sybase contends th a t a designation of "any communication" is overly broad, and suggests "comments and a s s e s sm e n ts " from the U.S. Government to Sybase about Sybase's compliance with

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immigration laws during the past 10 years. The Court agrees that "any communication" is o v e rly broad, and that a restriction to the past 10 years is reasonable. The Court will limit th e topic as framed by Sybase. Other topics relating to government documents are a d d re s s e d below, in the section addressing production of documents for the 30(b)(6) d e p o s itio n . D. S y b a s e Policies Regarding Foreign Nationals and the Visa Waiver P rogram

W illn e rd asks that the designee be able to address Sybase's policies regarding re s tric tio n s on the type of work performed by foreign nationals present at Sybase under a n y program from 2007 to the present. The Court finds this to be an appropriate topic and w ill allow it; if no such policies exist, the designee can answer accordingly. Willnerd asks that the designee be prepared to address Sybase's reliance on the V is a Waiver Program for performance of employment-related activities by a foreign n a tio n a l in the U.S. from 2007 to present. The Court understands that the Visa Waiver P ro g ra m allows citizens of specific countries to travel to the United States for tourism or b u s in e s s for up to 90 days without having to obtain a visa. In Willnerd's letter of te rm in a tio n , Sybase supervisor Terry Stepien cited Willnerd's poor judgment in a p p ro v in g Johannes Alberti to commence work, and approving payment of Alberti's e x p e n s e s in coming to work for Sybase, before Alberti could do so legally. This bears u p o n the timing of Alberti commencing work, in relation to his obtaining the right to do s o under an approved L-1 visa. Given the focus on the timing of Alberti's work, it would
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appear that Sybase's policies concerning utilization of a Visa Waiver Program for its e m p lo ye e s may bear upon the validity of the reason given for termination. Accordingly, th e Court will grant Willnerd's request to question the designee on this topic. The remaining topics requested by Willnerd mirror the documents he has asked to b e produced for the 30(b)(6) deposition, and will be addressed in the next section. 2. P r o d u c tio n of Documents for 30(b)(6) Deposition W illn e rd requests a ruling by the Court that directs Sybase to produce the f o llo w in g documents: (1) documents regarding the number of foreign nationals present in th e U.S. on non-immigrant visas for work at Sybase, from 2007 to the present; (2) Form I7 9 7 s , and Requests for Evidence received by Sybase related to non-immigrant visas a llo w in g foreign nationals to enter the U.S. for temporary employment from 2007 to the p re s e n t; (3) Notices of Inspections and Form I-9 Audits received by Sybase from 2007 to p re s e n t; (4) Notices regarding any potential or actual penalties, fines, sanctions or other c ita tio n s issued by the U.S. Government against Sybase for violations of U.S. im m ig ra tio n law from 2007 to the present; (5) documents regarding Sybase's contention th a t U.S. immigration law may have been violated on authorization for payment of e x p e n s e s incurred by Johannes Alberti from December 2007 through January 2008, b e f o re he was authorized to work in the U.S.; (6) documents regarding authorization of a n d approval by the U.S. Government for Johannes Alberti to enter the U.S. to work for S yb a s e ; (7) documents regarding authorization of and approval by the U.S. Government

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for Employee A to enter the U.S. to work for Sybase; and (8) the I-94 card and visa stamp o f Johannes Alberti for his entry into the U.S. in December 2007. A. N u m b e r of Foreign Nationals In U.S. for Sybase

T h re e of Willnerd's requests for production of documents are substantively in d is tin g u is h a b le , and seek documents reflecting the number of foreign nationals in the U .S . Sybase has indicated there are no documents responsive to this request. Sybase s h a ll provide Willnerd's counsel with an affidavit to this effect, prior to the 30(b)(6) d e p o s itio n , which the parties have agreed to reschedule to a mutually agreeable time. B. F o r m I-797s and Requests for Evidence

W illn e rd requests form I-797s and Requests for Evidence sent by the U.S. G o v e rn m e n t to Sybase regarding non-immigrant visas for foreign nationals to work te m p o ra rily in the U.S. This request relates to Sybase's reason for Willnerd's termination ­ that he authorized Alberti to work for Sybase before Alberti could legally work in the U .S . under an L-1 visa. According to Sybase, I-797s are notices by the U.S. Government th a t an individual's application for an L-1 visa has been received or approved. When a n o tic e of approval is received, the applicant must return to their home country and get an L -1 visa stamp at an American Embassy there, before they may legally work in the U.S. The pertinent event, in assessing whether Willnerd did nor did not exercise poor ju d g m e n t, is when a foreign national may legally work in the U.S. ­ not when the in d iv id u a l's application has been received or approved. It is not clear to the Court that

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the timing of notices of approval for L-1 visas is relevant to this issue and is reasonably c a lc u la te d to lead to the discovery of admissible evidence. The request is therefore d e n ie d . R e q u e s ts for Evidence are notices from the U.S. Citizenship and Immigration S e rv ic e s (USCIS) that an application for a visa (or other application) is insufficient or c o n ta in s suspicious data. Whether or not any employees of Sybase received notices that th e ir visa applications contained insufficient or suspicious data has no bearing on whether th e reasons for Willnerd's termination were pretext for some other improper basis. The C o u rt finds that this request is also unlikely to lead to the discovery of admissible e v id e n c e , and will deny the request. C. N o tic e s of Inspection, I-9 Audits, and Notices of Sanctions, Fines, or O th e r Citations

S yb a s e indicates that it has no documents responsive to Willnerd's request for n o tic e s of inspection, I-9 audits, and actual or potential sanctions, penalties, fines, or o th e r citations. Sybase shall state as such in an affidavit served on Willnerd's counsel p rio r to the 30(b)(6) deposition. D. D o c u m e n ts Regarding Sybase's Contention That U.S. Immigration L a w May Have Been Violated Re Expenses for Alberti

W illn e rd requests "documents regarding or relating to Defendant's contention that U .S . immigration law may have been violated" regarding payment of expenses incurred b y Alberti. This request is somewhat broad and vague. However, it strikes at the heart of

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the proffered reason for Sybase's decision to terminate Willnerd. It, in essence, asks S yb a s e to produce any documents which underlie its decision that Willnerd's conduct m a y have violated U.S. immigration law and therefore justified termination. In this light, th e request is self-limiting since it calls for Sybase to identify documents which it relied u p o n in its decision-making. The Court will allow the request. S yb a s e responds that this topic, and any documents responsive to this request were p re p a re d by attorneys in anticipation of litigation and are protected as attorney work p ro d u c t, or are privileged under the attorney-client privilege. The Court finds that this b la n k e t response, without more specificity or provision of any documents, is inadequate. Sybase shall be required to respond to Willnerd's amended request, in light of this order; w h e re appropriate, Sybase shall maintain a privilege log of any documents withheld. These documents shall be provided to the Court for an in camera review to determine the e x is te n c e of a privilege or work product protection. E. D o c u m e n ta tio n of Authorization and Approval for Alberti and E m p lo y e e A 1

W illn e rd requests documentation of authorization and approval by the U.S. G o v e rn m e n t for Alberti and Employee A to come to the U.S. to work for Sybase. Sybase in d ic a te s that it has already provided the documents responsive to the request as to A lb e rti. Prior to the 30(b)(6) deposition, Sybase shall provide Willnerd's counsel with an

The parties have agreed to use this moniker to maintain the privacy of this employee. Both parties are aware of the identity of Employee A. ORDER ON DISCOVERY ISSUES - 8

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affidavit indicating that it has previously provided all documents responsive to the re q u e s t. Regarding documentation as to Employee A, Sybase objects because the request in v a d e s Employee A's right to privacy, is overbroad and not reasonably likely to lead to th e discovery of admissible evidence, and would require disclosing confidential a tto rn e y-c lie n t communications and attorney work product. The Court assumes that E m p lo ye e A is, in some way, a possible comparator for Alberti, and that the comparison o f the two may provide some indication as to whether the stated reason for termination of W illn e rd was valid or pretextual. That would seem to establish its relevance and the lik e lih o o d that it will lead to the discovery of admissible evidence. The issue of E m p lo ye e A's privacy can be dealt with by way of a protective order. The issue of p riv ile g e and work product can be dealt with by preparation of a privilege log and the s u b m iss io n of questioned documents to the court for in camera review. The Court will a llo w the request. F. I -9 4 Card and Visa Stamp for Alberti

W illn e rd requests copies of Alberti's I-94 card and visa stamp. Sybase asserts that it has no such copies. Sybase further indicates that it believes the originals of these d o c u m e n ts are in the possession of the U.S. Government. Sybase shall provide W illn e rd 's counsel an affidavit indicating that it does not have documents responsive to th is request, prior to the 30(b)(6) deposition.

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G.

D o c u m e n ts Previously Provided

W illn e rd asks Sybase to identify the Bates Numbers of documents responsive to its re q u e s ts , where they have already been produced. Sybase asserts that it is not obligated to p ro v id e Bates Numbers to Plaintiff's counsel under any rule or other authority. Although p ro v is io n of Bates Numbers would be a courtesy to counsel, Sybase is correct that such c o u rte sy is not required. The Court will not require it here. 3. 3 6 0 Reviews of Sybase Employees S yb a s e indicated its willingness to stipulate that it will not use Willnerd's 360 re v ie w , or any information learned or obtained from the review, as part of its reason for te rm in a tin g Willnerd. Accordingly, Sybase requests that the Court order that both parties s h a ll not refer to the 360 review, or any information learned from the review, as part of th e reason for Willnerd's termination. Sybase asks that the Court deny Willnerd's request f o r all 360 reviews done of Sybase employees for privacy concerns, and the c o n f id e n tia lity of business information and trade secrets. Citing to his termination letter among other evidence, Willnerd argues that the re c o rd demonstrates that information gathered in his 360 review was, in fact, used as a b a s is to terminate his employment. Willnerd further argues the evidence reveals that S yb a s e has changed its rationale for Willnerd's termination, and that such evidence is re le v a n t to show pretext for a discriminatory purpose. Willnerd asserts that, because s c o re s on his 360 review were deemed "unacceptably low" for integrity and reliability, he

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is entitled to know what Sybase considers "acceptable" as revealed in other employees' 3 6 0 reviews. T h e Court agrees that evidence of a change in Sybase's rationale for termination m a y provide circumstantial evidence of pretext. Although the issues may be further re f in e d in resolving motions for summary judgment, the case in its current posture in c lu d e s claims that Willnerd's termination was retaliatory and that he had certain rights s te m m in g from his Education Assistance Agreement which required that he only be te rm in a te d for cause. Under either a retaliation or wrongful termination claim, evidence o f pretext would seem relevant. Even if Sybase stipulates that it did not terminate W illn e rd based on information learned in his 360 review, the inclusion of the 360 review a s one of the reasons for his termination make the standards applied by Sybase in those re v ie w s relevant and discoverable. Accordingly, Willnerd's request shall be granted. However, Sybase may substitute a lia s e s for employees' names to maintain their anonymity and privacy. 4. Q u e s tio n s for Willnerd Regarding Expenses Charged to Sybase S yb a s e posed a number of questions to Willnerd in his deposition regarding e x p e n s e s that Willnerd charged to his Sybase credit card. Counsel for Willnerd, in his d e p o s itio n , directed him not to answer. Sybase asks that the Court direct Willnerd to a n s w e r these questions, and two others also pertaining to its after-acquired evidence a rg u m e n t: (1) whether Willnerd was engaged in a romantic relationship with Ms. Owen;

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and (2) whether Plaintiff's romantic relationship coincided with the expenses in question. T h e Court finds that the questions are appropriate and will direct Willnerd to a n s w e r in a continued deposition to be scheduled by agreement of the parties. 5. P r o d u c tio n of Documents Related to Willnerd's Damages W illn e rd asks for information concerning additional compensation ­ in the form of in c e n tiv e , performance and/or stay-on bonuses ­ paid to Sybase employees by SAP, a c o m p a n y that recently merged with Sybase. Sybase indicates that no employee similarly s itu a te d to Willnerd received a stay, performance, or incentive bonus as a result of the S A P merger; thus, there are no documents responsive to this request. Sybase provide W illn e rd 's counsel with an affidavit to this effect prior to the 30(b)(6) deposition. ORDER I T IS ORDERED THAT: 1. S yb a s e shall prepare its designee to address the following topics: a. b. S yb a s e 's immigration policies; T h e identities of Sybase employees disciplined in the last 5 years for failure to comply with Sybase immigration policies or U.S. immigration law; the d is c ip lin a ry measures taken against those employees, if any; c. S yb a s e 's policies and practices, from 2007 to present, for ensuring that S yb a s e 's immigration policies and U.S. immigration laws are followed with re s p e c t to foreign nationals in the U.S. ­ including those entering on non-

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immigrant visas ­ for Sybase-related business, and as applied by or to m a n a g e rs similarly situated to, above, and two ranks below Willnerd; d. C o m m e n ts and assessments from the U.S. Government to Sybase about S yb a s e 's compliance with immigration laws during the past 10 years; e. S yb a s e 's policies regarding restrictions on the type of work performed by f o re ig n nationals present at Sybase under any program from 2007 to the p r e s e n t; f. S yb a s e 's reliance on the Visa Waiver Program for the performance of e m p lo ym e n t-re la te d activities by a foreign national in the U.S. from 2007 to p r e s e n t. 2. W illn e rd shall amend its request for documents regarding Sybase's contention that U .S . immigration law may have been violated, to include restrictions such as id e n tif ic a tio n or description of authors and recipients of such documents, and a tim e -f ra m e when such documents were created. 3. S yb a s e shall produce the following documents for the 30(b)(6) deposition: a. D o c u m e n ts responsive to Willnerd's amended request per paragraph 2 (im m e d ia te ly above) of this order; a privilege log of any documents w ith h e ld ; Sybase shall provide the withheld documents to the Court for an in camera review; b. D o c u m e n ta tio n of authorization and approval by the U.S. Government for

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Employee A to come to the U.S. to work for Sybase. 4. S yb a s e shall produce in discovery, the 360 reviews of other Sybase employees; a lia s e s may be substituted for employee names, to maintain anonymity and p r i v a c y. 5. S yb a s e shall provide an affidavit, prior to the 30(b)(6) deposition, indicating that th e following documents have already been provided, or that it possesses no d o c u m e n ts responsive to Willnerd's request: a. b. T h e number of foreign nationals working for Sybase in the U.S.; N o tic e s of inspection, I-9 audits, and actual or potential sanctions, penalties, f in e s , or other citations, from the U.S. Government to Sybase; c. D o c u m e n ta tio n of authorization and approval for Alberti to come to the U .S . to work for Sybase; d. e. C o p ie s of Alberti's I-94 card and L-1 visa stamp; D o c u m e n ta tio n of any stay, performance, or incentive bonuses paid to e m p lo ye e s similarly situated to Willnerd as a result of Sybase's recent m e rg e r with SAP. 6. In a continued deposition to be scheduled on agreement of the parties, Willnerd s h a ll respond to Sybase's questions regarding expenses charged to Sybase's credit c a rd for Michelle Owen.

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DATED: November 3, 2010

B. LYNN WINMILL C h ie f U.S. District Court Judge

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